‘The court’s position is, no one can tell them what to do’

Janine Jackson interviewed Vox‘s Ian Millhiser about Supreme Court corruption for the May 12, 2023, episode of CounterSpin. This is a lightly edited transcript.

Janine Jackson: If you are disturbed, but also overwhelmed, by the sheer volume and severity of revelations of corruption at the U.S. Supreme Court, you’re far from alone. Clarence Thomas, his wife Ginni and billionaire operative Harlan Crow may be at the current epicenter, but our guest suggests the problem, and consequently the necessary response, is much bigger and deeper.

Ian Millhiser covers the Court and the Constitution as senior correspondent at Vox. He is the author of the book Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, and The Agenda: How a Republican Supreme Court Is Reshaping America.

He joins us now by phone from Virginia. Welcome to CounterSpin, Ian Millhiser.

Ian Millhiser: It’s good to be here, thanks so much.

JJ: Well, let’s start with the information that many folks will have heard at least some piece of. Clarence Thomas has been recipient of millions of dollars worth of gifts—including vacations, homes, the private school tuition of a child he says he’s raising as a son— from Republican billionaire Harlan Crow, without disclosure. As you’ve noted, this relationship between Thomas and Crow has actually been going on for years, and has been known about for years.

Thomas’ line has been, there’s no conflict, because Harlan Crow doesn’t have any business before the Court. That’s not true, and if it were, I imagine that many people would be surprised to learn that the standard of the highest court in the land is that a powerful billionaire, who overtly wants to reshape the country’s laws and regulations, can give you lots of money and benefits over decades, and it doesn’t matter, if they aren’t a named party in a case you’re actively considering.

And Roberts, and all the justices, I understand, signed a letter saying that, basically, We aren’t really governed by ethics rules, but it’s OK because we follow them anyway. Are we missing something, or is this really the Court’s official response to this?

IM: Yeah, the Court’s position is essentially, no one can tell them what to do. They use the words “separation of powers” a lot, to claim it would be wrong if Congress or someone else imposed an ethics code on them. But the reality that it creates is that there are no rules for the justices, other than the rules that they feel like complying with.

And to be clear, if the justices were anywhere else in government, there would be extraordinary ethics constraints on them. There’s a statute that says if you work for a federal agency, you cannot accept any gift, period, from anyone who is regulated by the agency that you work for. If you’re a member of Congress, or even if you’re just a congressional staffer, there’s a rule saying that if you want to accept a gift, even from one of your lifelong friends, and it’s more than $250, you have to get approval from the House Ethics Committee.

I used to work for an organization; we’d host a lot of congressional staffers for luncheons sometimes. And they would ask us, before we served them a meal, “Does this cost more than $25?” The reason why is because, under the ethics rule, if the meal costs more than $25, they aren’t allowed to eat it.

And so those are the rules that apply to other people in government. The rules that apply to the Supreme Court justices, apparently, are that Clarence Thomas can accept a $500,000 vacation from a billionaire, and there’s nothing wrong with that. Or at least nothing can be done to him.

JJ: John Roberts wrote an opinion, some years ago, vacating the conviction of former Virginia Gov. Bob McDonnell, who had been convicted of accepting luxury gifts and loans from a bigwig. And in Roberts’ opinion, he said it was “distasteful…but our concern is not with tawdry tales of Ferraris, Rolexes and ball gowns.” That seems to say, “We’re just above all of this; you might think this is a concern, but we’re Supreme Court justices, and we are just above it all.”

IM: This, I guess, shows you why they’ve taken such a blasé attitude to all these gifts that Clarence Thomas is getting. They almost don’t believe that the concept of corruption exists.

JJ: That’s what I was wondering.

IM: Basically what they have said—I mean, they said this explicitly, and this was the holding of the Citizens United decision—is that the only thing that counts as corruption is an explicit quid pro quo arrangement.

So if I go to a congressman and I say, “I will give you $10,000 if you vote for this bill,” that’s the one thing that the Supreme Court has said actually qualifies as corruption. But if I am, say, a lobbyist for, let’s say, the pork industry, and I write a congressman a $10,000 check and say, “Here’s $10,000, I’d like to have a meeting with you,” and then in that meeting, I say, “Here’s a list of bills I want you to vote for,” the Supreme Court has said that’s not corruption, because there was no explicit “you only get the $10,000 if you do what I say.” They even said, in the Citizens United case, that it’s good that elected officials are more responsive to their donors, because “democracy is premised on responsiveness.”

So you’re dealing with a bunch of folks who don’t see any problem at all with people who have a lot of money, who are willing to spend it on public officials, getting more access, and getting more beneficial outcomes from government. And so it doesn’t surprise me at all that Clarence Thomas, who has joined all those decisions, says, “Well, if Bob McDonald can get a Rolex, and if members of Congress can get the $10,000 donation, why can’t I get all the goodies that I want?”

JJ: Right. It’s just the joke is on everybody else, right?

I want to ask you about a big thing that I think folks may have not learned about yet. I want to ask you about Chevron v. Natural Resources Defense Council. Can you just tell us about the significance of that 1984 ruling, and then the significance of its potential overturn, which is possibly going to happen?

IM: So one trend I’ve been watching very closely in this Court—and this, I think, should trouble everyone who’s worried about the corruption in the Court as well—is that this Court is very eager to concentrate power within itself. And this is a break; there’s all kinds of cases, throughout the 20th century, establishing that courts should be reluctant to exercise power, in part because federal judges aren’t elected, so when they exercise power, they are taking power away from democratically elected officials.

Chevron is one of those cases.  The way that a lot of federal law works is that, Congress writes a law and it delegates to a federal agency the power to figure out how to implement that law, how to achieve the goal of the law; the agency issues a regulation using the authority it’s been delegated by Congress. And Chevron said that, generally, courts should defer to the agencies when they issue those decisions. Courts should stay out of the question of  whether those regulations are good ideas or not.

And the reason why is twofold. One is that judges don’t know a lot about the subject matters that agencies regulate; agencies know more, and are likely to do it well. And the other reason why is that, while the heads of federal agencies are typically not elected, they are all appointed by and serve at the pleasure of an elected president. And so there’s still democratic accountability there in a way that there isn’t in the judiciary.

Chevron has been around since 1984. The Supreme Court recently announced that it will take a case that seeks to overrule Chevron. And I see this quest to overrule Chevron as part of this much bigger project the current Court is engaged in, of trying to concentrate power in the Supreme Court itself, and to roll back all these old decisions that said that judges should be reluctant to exercise power.

JJ: And just as a point of information, or maybe more, Clarence Thomas wrote the majority opinion on Chevron, right? But now he’s opposed? He says he’s matured and changed his mind?

IM: Chevron was handed down before Thomas’ time; it was Justice Stevens who wrote the opinion. I believe that Thomas was in the Reagan administration when Chevron was handed down.

JJ: No, that’s right.

IM: But we have seen a huge shift. Thomas used to join decisions advocating for judicial restraint, like what was argued in Chevron. Justice Scalia, the conservative icon, was an evangelist for Chevron.

And of course Scalia was an evangelist for Chevron in the 1980s, when Republicans controlled the government. And so conservatives were very, very happy for courts to stay out of policymaking, and leave matters up to the experts in the federal agencies, when those agencies were controlled by the Republican Party.

When we started to see conservatives, including people like Thomas, shift away from this support for judicial restraint, was when Barack Obama moved into the White House, and all of a sudden there was a risk that Democrats might be making calls within the agencies. And so all of a sudden, many of the same conservative judges, who had been huge advocates of judicial restraint under Ronald Reagan, suddenly decided that the Court should be more active in checking Barack Obama.

JJ: Well, for some people, when the guy who starred in Bedtime for Bonzo became president, it damaged the role, the legitimacy, of the presidency itself. The Court-packing by a president who didn’t even win the majority vote, the guy who likes beer, you know, the Roe overturning, Citizens United—it’s led to a similar drop in many people’s respect for the Supreme Court. Confidence in the Court, we hear, is at a historic low.

To which you have said, “Good.” And not just that, but that if one knows the Supreme Court’s history, and understands its structure, what’s going on today is not this wild, unprecedented, “how could this happen” situation that some might suggest. What should we understand?

IM: The thing to understand about the Supreme Court throughout history is, first of all, you don’t get on the Supreme Court unless you’re a lawyer, and you don’t get on it unless you’re a fairly elite lawyer. So it’s an institution that has always been controlled by elite professionals. And, I mean, I’m a lawyer myself, I don’t think that all lawyers are terrible human beings, but when you have a graduate degree, and you earn the kind of money that lawyers can make, that tends to skew your perspective on society.

So it doesn’t surprise me that this institution that will always be controlled by elites has not been a particularly beneficent organization in American history. Through the history of judicial review, the idea that the Supreme Court is allowed to strike down federal law, the first case they ever did was Marbury v. Madison. All that Marbury says is that they’re allowed to do it. The second case they ever did that in was in Dred Scott, which was an abysmal pro-slavery decision, which said that Black people—I apologize, this is offensive language—but the opinion said that Black people are “beings of an inferior order,” and therefore aren’t entitled to the same rights as white people. So that was the second time the Court ever exercised judicial review.

We passed three constitutional amendments—the 13th, 14th and 15th amendments—to get rid of Dred Scott, and the Court spent the first 30 or 40 years that those amendments were in effect basically writing them out of the Constitution. And then they spent the next 30 or 40 years, in what is known as the Lochner era, where they read the amendments, that were supposed to achieve racial equality in the U.S., to protect business owners from laws that gave their workers a minimum wage, from laws that allowed their workers to unionize, from laws that said that workers could not be overworked.

That’s the history of the Supreme Court. I could go on, I could talk about Korematsu, I could talk more about Citizens United, I could talk about them striking down parts of the Voting Rights Act. But the Supreme Court, for almost all of American history, has been a malign force, and that’s a big reason why I often argue that it should have much less power.

JJ: Let me just draw you out on one thing, because the media depiction is, “Republicans and Democrats fight over these tools, of which the Court is one, and whoever gets control of them has power.” But that’s not quite how it goes; there are reasons that it’s harder to do progressive policy with control of the Court than the other way around, yeah?

IM: Two responses. One, with respect to the assertion that, well, this is just a prize that both parties fight over, and whoever gets it gets it, fair and square: We are supposed to be a democracy; we have presidential elections every four years in this country; that means that if your candidate wins the presidential election, your party should get to govern for four years. It does not mean that you should get to govern for forty years.

One impact of the fact that Donald Trump happened to get elected at a time when three seats became vacant on the Court means that this guy who lost the popular vote, who tried to overthrow the federal government, got to appoint a third of the Supreme Court. And a recent paper that came out, by a friend of mine up at Harvard, argues that Democrats may not have a shot of regaining a majority in the Supreme Court until 2060. I will probably be dead the next time there’s a Democratic majority on the Supreme Court.

So, again, I think it is fair that if Republicans run a candidate for president, and that candidate wins the election fair and square, then they get four years of power. They should not get forty years of power.

And on top of that, the power that they get—Courts are very good at striking down laws, they’re very good at saying “no” to things. Courts can’t really build anything from scratch. Courts don’t have economists, they don’t have people who enforce their decisions, they don’t have the web of bureaucracy that you need to create, say, a welfare state.

And so courts wind up being much more powerful tools in the hands of conservatives, people who want to stop the government from doing things, because the Court can always strike a law down, they can always say no to a policy that is enacted. But they just aren’t very good at building things. Again, they do not have the staff, they do not have the infrastructure, to build policies; they can only destroy. 

JJ: Maybe following from that, you have written, “There are better ways to design a judiciary.” Can you tell us just a little bit about what you think some of those ways might be?

IM: The idea behind a court is that you’re supposed to have judges who are obedient to legal text. They read the statute, they read the Constitution, they read what the precedents say. The answer to every legal question isn’t always 100% clear, but judges are supposed to do their best job of following what the law is, regardless of what they want the policy to be.

It’s really hard to have disinterested public servants in those roles as judges, if the way you pick those judges is that a partisan president nominates people, that inevitably that partisan president will think will implement their agenda from the bench, and then those judges are confirmed by a partisan Senate. The way that we choose judges all but guarantees the sort of people who serve as judges will be partisan, they will not engage in that disinterested practice of reading the legal text and trying in good faith to discern what the law is, not what they want the policy to be.

Other countries, other states in the U.S., do it very differently. There is the Missouri model, which is where you have a commission, and you have different inputs into the commission: The governor gets to appoint a few members, the bar gets to appoint a few members, I believe the Missouri chief justice gets to appoint a member. The idea is you have enough inputs onto this commission, so it is much harder for one party to capture control over judicial selection.

And then different states do it in different ways; different countries’ selection systems, they do it in different ways. The way that it works specifically in Missouri is that, when there’s a state supreme court vacancy, the commission comes up with three names, the governor has to pick one of them. And that helps reduce the partisanship of the judiciary.

The French system: Some of France’s courts are staffed by civil servants, like literally someone who goes to judge school—they get a graduate degree that qualifies them to be a judge—and then they move up the ranks, and they’re promoted from within. There are many ways to design a judicial selection process in a way that doesn’t make judges into partisan appointees, and, unfortunately, we just don’t do that at the federal level in the U.S.

JJ: OK. Your work at Vox, ProPublica, Politico, the Lever, the Washington Post—all of the stories and exposés around this court corruption story, it’s showing, really, the power and importance of investigative reporting.

Crow’s laughable line about how he covered up payments to Ginni Thomas in one case because “ people are so mean, and if it got out, people would say mean things about her”: It’s laughable, but it’s not funny, and I just have to think that surely what some powerful people are taking away from this is that there should be no more exposés.

I wonder if, along with what legislators might do and what people might do, what would you hope to see journalists do to keep this from being a couple weeks’ long scandal, and then we’re on to something else?

IM: It is a good question, because I think if Clarence Thomas, again, were in any other branch of government—like, if we found out that the secretary of transportation was getting flown all over the world, taking these lavish vacations being paid for by a billionaire political donor, the secretary of transportation would lose their job, because it would be too much of a scandal, and it would blow back on the president if they weren’t fired.

If a member of Congress did this, they would probably resign, and if they didn’t resign, they would be pushed out of office, either in their primary election, because their own party wouldn’t want them as an anchor hanging around their necks, or in the next general election.

And the Supreme Court, the only way to remove a justice is by impeachment. That takes 67 votes in the U.S. Senate, which means that you would need at least 16 Republicans to vote to remove that justice. And, I mean, Clarence Thomas could eat a live human baby on national television and there wouldn’t be 16 Republican votes to remove him from office. They are committed to keeping this man on the Supreme Court.

I’ve covered the Supreme Court for a very long time. I covered Clarence Thomas’ scandals in which he accepted gifts from billionaire Harlan Crow in 2011, a dozen years ago I was on this story. It flared up, I wrote about it, a bunch of other reporters wrote about it, I went on the Rachel Maddow Show twice to discuss it. And nothing happened, because under our Constitution, Clarence Thomas is impossible to fire.

And so we can keep shining a light on this. I think the most important thing that journalists can do is make it clear that Clarence Thomas is a Republican, and to speak of the Court, speak of the justices, as political appointees chosen by partisan officials, so that the voters know, “OK, if I don’t want someone like Clarence Thomas appointed in the future, I know which party to blame.” But ultimately, that’s the only leverage that voters have with respect to the Supreme Court, because they enjoy this extraordinary protection from being fired, virtually no matter what they do.

JJ: And that just underscores the importance of voting rights, right? It all kind of tangles together, when the tools that you need to fight back against something like this are at least partly in the hands of the very people that you would be fighting.

IM: Now it’s getting so much attention, because Dobbs happened, because of the scandals with Thomas, because of the circumstances that led to Brett Kavanaugh getting on the Court, people are beginning to realize there are interesting stories, important stories, to be told there.

But ultimately, like I said, any consequences for what the Court has done are going to be one step removed from the people who are actually doing the terrible things. We probably cannot remove Thomas or Kavanaugh or any of those folks. The thing that voters need to understand is just that these are Republican political appointees doing these things, and if you think that the things that they are doing are bad, then take that into account when you show up at the voting booth.

JJ: All right, we’ll end it there for now.

We’ve been speaking with Ian Millhiser, senior correspondent at Vox, author of Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted and The Agenda: How a Republican Supreme Court Is Reshaping America.

Ian Millhiser, thank you so much for joining us this week on CounterSpin.

IM: All right, thank you.